Vismore v. State , 41 Ga. App. 544 ( 1930 )

Luke, J.

The defendant was convicted in the criminal court of Atlanta on an accusation containing two counts, each charging him with possessing corn whisky at a different time and place. The second count alleges that the defendant “did have, control, and possess spirituous and intoxicating liquor, to wit, 2 gallons of corn whisky.” The jury returned a general verdict of guilty, and the court sentenced the defendant separately under each count of the accusation. Held:

1. The court properly overruled both the demurrer to the accusation and the defendant’s motion that he be allowed “a full number of peremptory challenges of the jury on each separate and distinct charge in the accusation.”

2. The chai'ge of the court was not erroneous for any reason assigned.

3. The judgment overruling the certiorari is reversed' for the sole reason that the verdict was a conviction under both counts of the accusation and the evidence does not sustain the conviction under the second count, for the reason that the second count charges the defendant with having “corn whisky,” and the evidence goes no further than to show that he had “liquor.”

Judgment reversed.

Bloodworih, J., concws. Broyles, O. J., dissents. C. G. Bailie) for plaintiff in error. John 8. McClelland, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.